Top Plus Pty Ltd v Music Entertainment Pty Ltd - [2012] FMCA 1087

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOP PLUS PTY LTD v MUSIC ENTERTAINMENT PTY LTD & ORS

[2012] FMCA 1087

Copyright Act 1958, ss.115, 116
Federal Magistrates Court Rules 2001, rr.13.03A(2), 13.03B(2)

Applicant:

TOP PLUS PTY LTD

First Respondent:

MUSIC ENTERTAINMENT PTY LTD

Second Respondent:

QING WANG

Third Respondent:

MR LONG LI

Fourth Respondent:

EMPEROR ENTERTAINMENT (HONG KONG) LIMITED

Fifth Respondent:

UNIVERSAL MUSIC LIMITED

Sixth Respondent:

EAST ASIA RECORD PRODUCTION COMPANY LIMITED

Seventh Respondent:

HUMMINGBIRD MUSIC LIMITED

File Number:

MLG 390 of 2012

Judgment of:

Burchardt FM

Hearing date:

7 November 2012

Date of Last Submission:

7 November 2012

Delivered at:

Melbourne

Delivered on:

7 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Browne

Solicitors for the Applicant:

Thomsons Lawyers

The First Respondent:

No appearance

The Second Respondent:

No appearance

The Third Respondent:

No appearance

The Fourth Respondent:

No appearance

The Fifth Respondent:

No appearance

The Sixth Respondent:

No appearance

The Seventh Respondent:

No appearance

ORDERS

The First Respondent, whether by itself, its servants, agents or otherwise, be permanently restrained from infringing the copyright in any of the cinematograph films contained in the EEG (which are set out in Tab 1 of the List of Works attached to these orders) works by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, or by authorising the doing of any of the above, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, do all things necessary to delete from the First Respondent's computer server or servers used in the operation of the First Respondent's karaoke business all digital music files and/or digital video files of the karaoke music videos in the EEG works, such deletion to be witnessed by a person nominated by the Applicant and to be verified on oath or affirmation by an authorised officer of the First Respondent.
Each of the Second and Third Respondents be permanently restrained from authorising the infringement of copyright in any of the cinematograph files contained in the EEG works by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, be permanently restrained from infringing the copyright in any of the cinematograph films contained in the UML works (which are set out in Tab 2 of the List of Works attached to these orders) by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, or by authorising the doing of any of the above, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, do all things necessary to delete from the First Respondent's computer server or servers used in the operation of the First Respondent's karaoke business all digital music files and/or digital video files of the karaoke music videos in the UML works, such deletion to be witnessed by a person nominated by the Applicant and to be verified on oath or affirmation by an authorised officer of the First Respondent.
Each of the Second and Third Respondents be permanently restrained from authorising the infringement of copyright in any of the cinematograph files contained in the UML works by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, be permanently restrained from infringing the copyright in any of the cinematograph films contained in the EARP works (which are set out in Tab 3 of the List of Works attached to these orders) by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, or by authorising the doing of any of the above, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, do all things necessary to delete from the First Respondent's computer server or servers used in the operation of the First Respondent's karaoke business all digital music files and/or digital video files of the karaoke music videos in the EARP works, such deletion to be witnessed by a person nominated by the Applicant and to be verified on oath or affirmation by an authorised officer of the First Respondent.
Each of the Second and Third Respondents be permanently restrained from authorising the infringement of copyright in any of the cinematograph files contained in the EARP works by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, be permanently restrained from infringing the copyright in any of the cinematograph films contained in the HB works (which are set out in Tab 4 of the List of Works attached to these orders) by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, or by authorising the doing of any of the above, without the licence of the Applicant.
The First Respondent, whether by itself, its servants, agents or otherwise, do all things necessary to delete from the First Respondent's computer server or servers used in the operation of the First Respondent's karaoke business all digital music files and/or digital video files of the karaoke music videos in the HB works, such deletion to be witnessed by a person nominated by the Applicant and to be verified on oath or affirmation by an authorised officer of the First Respondent.
Each of the Second and Third Respondents be permanently restrained from authorising the infringement of copyright in any of the cinematograph files contained in the HB works by:
(i)making a copy of;
(ii)causing to be seen in public;
(iii)communicating to the public,
the whole or a substantial part of those cinematograph films, without the licence of the Applicant.
The Applicant be granted judgment in default of appearance against the First, Second and Third Respondents and that judgment be entered accordingly.
The Applicant be awarded damages in the amount of $20,075.00, pursuant to s 115(2) of the Act.
The Applicant be awarded costs in the amount of $6 964.12.
Interest to the date of judgment pursuant to s 76 of the Federal Magistrates Act 1999 (Cth) be fixed in the amount of $1,262.40.
The Applicant notify the Respondents of these orders by sending a copy of these orders to Level 1, 209-215 Bourke Street Melbourne, in the State of Victoria, 3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 390 of 2012

TOP PLUS PTY LTD

Applicant

And

MUSIC ENTERTAINMENT PTY LTD

First Respondent

QING WANG

Second Respondent

LONG LI
EMPEROR ENTERTAINMENT (HONG KONG) LIMITED

Third Respondent

EMPEROR ENTERTAINMENT (HONG KONG) LIMITED

Fourth Respondent

UNIVERSAL MUSIC LIMITED

Fifth Respondent

EAST ASIA RECORD PRODUCTION COMPANY LIMITED

Sixth Respondent

HUMMINGBIRD MUSIC LIMITED

Seventh Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 4 April 2011, the applicant filed an application seeking relief under sections 115 and 116 of the Copyright Act 1958 (“the Copyright Act”). The final orders identified as being sought in that application included declarations and injunctions and a claim for damages pursuant to the Copyright Act. Interest was also expressly pleaded, as were costs.
The statement of claim is detailed and runs for some 49 paragraphs with very substantial particulars annexed to it. Pursuant to the statement of claim the applicant would establish, if the matters alleged were to be found true, the various components that would give rise to the relief sought in the application itself.
I note that the damages asserted, in terms of the loss and damage suffered in monetary terms, were $20,075, being an amount calculated by reference to the respondents operating ten rooms at $5.50 per day multiplied by 365 days.
On 21 May 2012 the matter was adjourned before me. There was no appearance by the respondents, or any of them, and that happened again on 18 June 2012. Thereafter, on 27 July 2012, the applicant filed an application in a case seeking, in effect, another way forward given the difficulties of service up to that time.
The application was supported by an affidavit of Julia Kate Elizabeth Connelly sworn on 27 July 2012 which detailed the considerable difficulties that had occurred in relation to service. Further affidavits of attempted service were filed on 30 July, having been sworn by Graham Vose, a process server, and Wolfgang Meyer, likewise a process server, on the same date.
On 30 July 2012, I made orders for substituted service and adjourned the matter to 13 August 2012.
On 10 August 2012, Ms Connelly swore another Affidavit, filed the same date, deposing to the endeavours that had been taken to comply with the orders for substituted service. From the affidavit it is clear that those endeavours were successful within the ambit of the orders that had been made.
On 1 November 2012, a further application in a case was filed seeking orders very much in the form now sought, and that was supported by another affidavit of Ms Connelly sworn on 30 October 2012 which effectively brought the matter up to date by referring to the orders of O’Dwyer FM made on 13 August 2012. In those orders his Honour relevantly required the respondents to file and serve any defence on or before 24 August 2012, and that if no defence was so filed or the respondents were otherwise in default within the meaning of Rule 13.03A(2) of this Court’s Rules, leave be granted to the applicant to file and serve an application in a case seeking relief under Rule 13.03B(2) of the Federal Magistrates Court Rules 2001, to be returnable today.
There was an order for service by prepaid post and there has been filed an affidavit of service that confirms such service.
When the matter came on this morning I queried whether there was actual proof of the amount sought before the Court, and counsel very properly conceded that there was not. I required counsel to put on a further affidavit, which has now been done by Neil Garfield Sadler. Although Mr Sadler’s affidavit is clearly, in part, hearsay, it does give the Court comfort in explaining how the damages figure was arrived at. It is important to remember, as earlier stated, that the figure claimed was the figure in the statement of claim.
It is clear, as counsel submits, that the respondents are in default of order numbered 1 made by O’Dwyer FM on 13 August 2012. That brings into play rule 13.03B of this Court’s Rules pursuant to which the application has been made. Counsel confirmed that he relies only on rule 13.03B(2)(c) which reads that:
“if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings - give judgment against the respondent for the relief that :
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant.
All the orders now sought which are, given the nature of the infringing conduct asserted, pretty substantial, are within the Court’s power to make and are orders to which the applicant appears entitled on the statement of claim. They are conventional orders made in breach of copyright cases. Likewise, the Court plainly has the necessary power to make an order for damages in conformity with the statement of claim.
In these circumstances, it comes as no surprise that the Court has decided to make the orders sought in the terms in which they are sought.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 19 November 2012